ARTICLE II - FUNDAMENTAL PRINCIPLES AND STATE POLICIES

SECTION 2
(10) PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES VS. DUQUE III
(G.R. No. 173034, October 9, 2007)

FACTS: Petition for certiorari seeking to nullify the Revised Implementing

Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the
RIRR is not valid as it contains provisions that are not constitutional and go
beyond what it is supposed to implement. Milk Code was issued by President
Cory Aquino under the Freedom Constitution on Oct.1986. One of the
preambular clauses of the Milk Code states that the law seeks to give effect to
Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a
code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA
also adopted severe resolutions to the effect that breastfeeding should be
supported, hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed
RIRR.

ISSUES:

Sub-Issue: Whether the pertinent int’l agreements entered into by the Phil are
part of the law of the land and may be implemented by DOH through the RIRR.
If yes, Whether the RIRR is in accord with int’l agreements

MAIN: Whether the DOH acted without or in excess of their jurisdiction, or with
grave abuse of discretion amounting to lack of excess of jurisdiction and in
violation of the Constitution by promulgating the RIRR.

DISCUSSIONS:
Treaties become part of the law of the land through transformation
pursuant to Section VII, Article 21 of the Constitution, which provides that “no
treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the members of the Senate.” Thus, treaties or
conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts.
“Generally accepted principles of international law” refers to norms of
general or customary international law which are binding on all States, i.e.,
renunciation of war as an instrument of national policy, the principle of
sovereign immunity, a person’s right to life, liberty, and due process and pacta
sunt servanda, among others. The concept of “generally accepted principles of
law” has also been depicted in this wise:
Some legal scholars and judges upon certain “general principles of law”
as a primary source of international law because they have the “character of
jus rationale” and are “valid through all kinds of human societies.” (Judge
Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966,
I.C.J. 296). O’Conell holds that certain principles are part of international law
because they are “basic to legal systems generally” and hence part of the jus
gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be
doubt or disagreement, one must look to state practice and determine whether
the municipal law principle provides a just and acceptable solution.
Custom or customary international law means “a general and consistent
practice of states followed by them from a sense of legal obligation (opinion
juris).” This statement contains the two basic elements of custom: the material
factor that is, how states behave, and the psychological or subjective factor,
that is, why they behave the way they do.
The initial factor for determining the existence of custom is the actual behavior
of States. This includes several elements: duration, consistency, and generality
of the practice of states.
The required duration can be either short or long.
Duration therefore is not the most important element. More important is
the consistency and the generality of the practice.
Once the existence of State practice has been established it becomes
necessary to determine why States behave the way they do. Do States behave
the way they do because they consider it obligatory to behave thus or do they it
only as a matter of courtesy? Opinio Juris or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule. Without it,
practice is not law.

HELD:
SUB-ISSUE:
Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by
transformation (thru constitutional mechanism such as local legislation) or
incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA
resolutions were not treaties as they have not been concurred by 2/3 of all
members of the Senate as required under Sec, 21, Art 8. However, the ICBMS
had been transformed into domestic law through a local legislation such as the
Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS.
No for WHA Resolutions. The Court ruled that DOH failed to establish
that the provisions pertinent WHA resolutions are customary int’l law that may
be deemed part of the law of the land. For an int’l rule to be considered as
customary law, it must be established that such rule is being followed by states
because they consider it as obligatory to comply with such rules (opinion juris).
The WHO resolutions, although signed by most of the member states, were
enforced or practiced by at least a majority of member states. Unlike the
ICBMS whereby legislature enacted most of the provisions into the law via the
Milk Code, the WHA Resolutions (specifically providing for exclusive
breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely
prohibiting ads for breastmilk substitutes) have not been adopted as domestic
law nor are they followed in our country as well. The Filipinos have the option
of how to take care of their babies as they see fit. WHA Resolutions may be
classified as SOFT LAW – non-binding norms, principles and practices that
influence state behavior. Soft law is not part of int’l law.

MAIN ISSUE:
Yes. Some parts of the RIRR were not in consonance with the Milk Code
such as Sec. 4 (f) - advertising, promotions of formula are prohibited,
Sec 11 - prohibitions for advertising breastmilk substitutes intended for infants
and young children uo to 24 months And Sec 46 - sanctions for advertising .
These provisions are declared null and void. The DOH and respondents
are prohibited from implementing said provisions.